On May 13, 2024, the U.S. Environmental Protection Agency (“EPA”) and New York State officials broke ground on a clean water infrastructure project at Plant 6 of the Hicksville Water District, located in Nassau County.  This groundbreaking step represents just the initial phase of a comprehensive effort to implement a $9 million treatment system to remove a number of hazardous per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” from Hicksville’s water supply, and secure clean drinking water for local residents. 

PFAS are used in food packaging and in products that resist heat, oil, stains, grease and water, such as nonstick cookware, water-repellent clothing and some cosmetics, among many other industry and consumer products.  PFAS exposure has been linked to, inter alia, certain cancers, increases in cholesterol levels, changes in liver enzymes, and immune system and development damage to infants and children.

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The new treatment system is designed to comply with the EPA’s final rule issued in April which established a new, more onerous maximum contaminant level (“MCL”) for several PFAS known to occur individually and as mixes in drinking water.  MCLs are enforceable regulatory limits that set forth the highest level of a particular contaminant allowed in public drinking water, i.e. there is no known or expected risk to health at or below the level.

The rule sets forth the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful PFAS.  In the past, the EPA issued health advisories for PFAS exposure but never established legally enforceable national drinking water regulations for them.  These health advisories provide information on contaminants that can cause adverse health outcomes and are known or anticipated to occur in drinking water but are non-enforceable and non-regulatory.  The EPA previously established health advisory levels that drinking water contain no more than 70 parts per trillion (“ppt”) of PFAS chemicals.

Under the Safe Drinking Water Act (“SDWA”), which applies to every public water system in the United States, the EPA has authority to set enforceable National Primary Drinking Water Regulations for drinking water contaminants and require monitoring of public water supplies.  The EPA has exercised its authority under the SDWA and has set MCLs of 4 ppt for perfluorooctanoic acid (“PFOA”) and 4 ppt for perfluorooctanesulfonic acid (“PFOS”).  Public drinking water systems must comply with these new standards by 2029.  The EPA’s final rule represents data-driven drinking water standards that are based on the best available science and meet the requirements of the SDWA. 

Under these new federal standards, water utilities are required to notify the public and reduce contamination in the event the PFAS levels exceed the new MCL standard of 4 ppt.  PFAS reduction measures include implementing solutions to reduce PFAS in the drinking water within five years. 

Although the EPA’s Hicksville project is progress towards compliance with the new PFAS standards, most Long Island water providers have already implemented equipment designed to meet less stringent PFAS standards promulgated by the New York State Department of Health (“NYSDOH”) in 2020.  New York’s standards for emerging contaminants are among the most protective in the country, which set MCLs of 10 ppt for PFOA and PFOS, and 1 part per billion for 1,4-dioxane.  Until 2029, public water systems in New York must still meet these MCLs.

Despite New York’s continuing efforts to reduce, and eventually eliminate, PFAS exposure, compliance with the new EPA standards for other water districts on Long Island will prove to be a challenge until the State receives funding for additional projects.  NYSDOH, however, continues to review the health risks associated with drinking water contaminants and will update and develop additional drinking water standards as is required to protect public health.

Takeaway: The Hicksville project remains on schedule for completion in June 2025.  Its primary objective is to effectively lower PFAS levels in drinking water to meet the EPA’s more stringent standards.  Meanwhile, Long Island’s other water providers continue to be governed by and are expected to follow NYDOH’s 2020 guidelines to mitigate PFAS exposure.  As efforts persist to combat PFAS contamination, it underscores the ongoing commitment – both nationally and state-wide – to safeguard public health and ensure access to clean and safe drinking water for communities across New York. 

NOTE: The EPA has advised that New York State residents can continue to drink their water unless told otherwise by their public water system, or the local or state health department.

Resources (available on the NYSDOH website):

Recently, in On Point Window Treatment, Inc. v. 208 Clinton Place, LLC, 2024 N.Y. Slip Op. 50241 (N.Y. Sup. Ct. 2024), the Kings County Supreme Court held that even when paired with an insurance procurement requirement, a landlord could not rely on an indemnity clause negotiated into its lease to exempt such landlord from liability.

Under General Obligations Law § 5-321 “agreements that purport to exempt landlords from liability for negligence are void” and unenforceable. However, it has long been understood that this does not apply “when a lease provision arrived at an arm’s length negotiation between two sophisticated parties requires both parties to allocate the risk of liability to third parties between themselves through insurance.” See On Point Window Treatment Inc. at 6 (internal citations omitted). The Court of Appeals reaffirmed this concept in 2006 when they stated in Great N. Ins. Co. v. Interior Constr. Corp., that “a commercial lease negotiated between two sophisticated parties who included a broad indemnification provision, coupled with an insurance procurement requirement” was enforceable, and held that when “a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law 5-321 does not prohibit indemnity.” See Great N. Ins. Co. v Interior Constr. Corp. (7 NY3d 412 [2006]).

Landlords and their counsel have relied on this structure of coupling an insurance requirement on the tenant with a negotiated indemnification clause as a way to limit a landlord’s exposure under a lease. However, the On Point Window Treatment, Inc. decision suggests that landlords and their counsel should be wary in their reliance on this structure.

In On Point Window Treatment, the tenant alleged that it “sustained significant damage to its leased space” as a result of the landlord’s negligence in maintaining the roof. See On Point Window Treatment, Inc. at 4. The landlord, in its defense, relied on the finding of the Court of Appeals in Great N. Ins. Co. and turned to its indemnification provision and insurance requirement of tenant in the lease. Such indemnification exempted the landlord from, among other things, liability for any damage caused by the roof. In addition, the insurance provision in the lease stated that the tenant assumed all risk of loss or damage to its property and was to maintain insurance coverage against such risks. See id. Further, the lease asserted that the landlord would not “incur any liability or responsibility for tenant’s property.” See On Point Window Treatment, Inc. at 4-5. The landlord argued that, because the lease was an “arm’s length negotiation between two sophisticated parties” that “allocate[s] the risk of liability to third parties between themselves through insurance” such indemnification clause should not be prohibited by General Obligations Law 5-321. See id.

However, the court found the opposite. In so holding, the court stated that “the insurance procurement clause was not an agreement to allocate the risk of liability to third persons but rather a means for [landlord] to avoid liability to [tenant] for its own negligence.” See On Point Window Treatment, Inc. at 7. The court ultimately found that the purpose of the indemnity provision was to exempt the landlord from liability for its own negligence, and therefore, violated General Obligations Law § 5-321. See id.


Takeaway: Landlords and their counsel should use caution when relying on indemnification provisions paired with insurance procurement clauses in order to limit liability under a lease.

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On September 22, 2023, Governor Kathy Hochul signed legislation (A.1967/S.5400) amending the Property Condition Disclosure Act (“PCDA”), which effectively eliminates a seller’s option to provide a residential homebuyer with a $500 credit in lieu of a Property Condition Disclosure Statement (“PCDS”). The amendment further requires sellers to disclose property information regarding flood risk, flood history and flood insurance.  This consequential shift is consistent with Gov. Hochul’s implementation of her comprehensive resiliency plan to protect New Yorkers from extreme weather. The amendment goes into effect on March 20, 2024.

This bill goes a long way towards helping give homebuyers the information they need to make informed decisions about one of the biggest financial investments of their lives — their home.

Joel Scata, Natural Resources Defense Council Attorney for Water Initiatives

Elimination of “Opt-Out” Provision

The New York legislature enacted the PCDA to supplement the information provided by professional inspections and tests and searches of the public records conducted by residential homebuyers (New York Sponsors Memorandum, 2001 Ch. 456). The PCDA was also a response to adherence seen in New York’s case law to the doctrine of “caveat emptor” or “buyer beware,” which has long permitted a residential seller to remain silent as to most matters that are not actively concealed by the seller.  Consequently, buyers ended up with the burden of thoroughly inspecting the premises, searching public records and asking sellers the “right” questions about the property.  Despite the introduction of the PCDA, sellers were given the opportunity to “opt out” of providing buyers with a PCDS, if they were willing to pay the price – $500. Unsurprisingly, the $500 credit to the purchaser became the standard, and not the PCDA.

Continue Reading Disclosure Revolution: Legislation Makes Property Condition Disclosure Statements Mandatory, Adding Flood Risks, and Waving Farewell to the $500 Credit

The 2022/2023 State budget included watershed (no pun intended) amendments to the regulations governing New York’s Freshwater Wetlands. It has been published that the changes to the Freshwater Wetlands Act are expected to capture approximately one million acres (1,560 square miles) of previously unregulated freshwater wetlands – the equivalent in landmass of 1/10th the state of Rhode Island.  As part of the move, the New York State Department of Environmental Conservation (“DEC” or “Department”) is seeking information from stakeholders as it considers the revisions to the regulations and develops criteria to implement the Act. 

Continue Reading DEC Seeks Feedback by February 17th as it Considers Revamped Freshwater Wetland Regulations

Recently in BMG Monroe I, LLC v. Village of Monroe Zoning Board of Appeals, the Second Department reinforced strict compliance with all State Environmental Quality Review Act (“SEQRA”) visual impact findings and mitigation conditions.

BMG Monroe I, LLC, (“BMG”) is a developer that owns at 78.93-acre tract of undeveloped land located in both the Town of Monroe and the Village of Monroe. BMG sought to develop 181 residential units on the property.

In 2001, a developer (not BMG) submitted an application to the Town and Village to develop the Property for residential use: the Smith Farm Project. The Smith Farm Project included 181 homes and on-site recreational amenities, including a community green, a recreation/activity center, an outdoor swimming pool, and a network of walking trails.

Continue Reading Exact Compliance with SEQRA Architectural Conditions Are Enforceable

In Matter of County of Monroe, 72 NY2d 338 (1988), the New York Court of Appeals addressed the applicability of local zoning laws to actions undertaken by a government entity operating within a geographic area subject to another government entity’s zoning powers. The controversy in Monroe involved the expansion of a county-owned and operated airport located within the corporate boundaries of the City of Rochester. The Monroe Court established that governmental immunity from local zoning is determined based upon a “balancing of public interests” that requires the consideration of nine factors, including “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” 72 NY2d at 343 (citations omitted).

Continue Reading Under Monroe Doctrine, Government Immunity from Local Zoning May Extend to Private Projects

The initial phase of New York City Local Law 18, also known as the Short-Term Rental Registration Law, went into effect in New York City on Tuesday, September 5th, 2023.  Enforcement of Local Law 18 is expected to significantly reduce the number of illegal, short-term rental listings – i.e. listings for less than thirty (30) consecutive days – available in New York City, especially on major online booking platforms such as Airbnb and VRBO. 

Under the New York City Multiple Dwelling Law, it is illegal to rent out your apartment and/or home for less than 30 consecutive days, except in very limited circumstances.  For a short-term rental to be legal under the Multiple Dwelling Law, (i) no more than two (2) paying guests may be hosted at a single time, (ii) the host must maintain primary occupancy and reside in the dwelling unit during the stay, and (iii) the paying guests must have access to all parts of the listing, what is referred to as a “common household.” 

Continue Reading Goodbye to Airbnb in NYC?

On July 28, 2023, in response to three separate fires at Battery Energy Storage System (“BESS”) locations in New York, Governor Kathy Hochul announced the creation of an inter-agency fire safety working group.  The Fire Safety Working Group, to be comprised of the Division of Homeland Security and Emergency Services Office of Fire Prevention and Control, New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation, Department of Public Service, and the Department of State.

Continue Reading Fires at New York Battery Energy Storage System Facilities Ignite State Response

On April 4, 2023, the Town of Riverhead joined the growing list of Long Island municipalities to have adopted special zoning regulations for Battery Storage Energy Systems (or BESS) projects. The law, which was filed with the State and took effect on April 15, 2023, is codified in Chapter 301, Article LIID of the Town Code, appropriately titled “Battery Energy Storage Systems.” A copy of the adopted regulations is available by clicking the following link: Riverhead Bess

Continue Reading Riverhead Gives the Green Light to New BESS Zoning Regulations

Last month, in Cuffaro v Zoning Board of Appeals of the Village of Bellport (Index # 620453/2021), the Suffolk Supreme Court reinforced the existing and binding case law that a municipality’s issuance of a building permit to a similarly situated lot effectively sanctions the subdivision of that property by deed without the requisite subdivision approval.  In a strongly worded decision, the Court held that a municipality cannot rely on a supposed illegal subdivision as a basis for denying an application where it has otherwise sanctioned the subdivision by granting certificates of occupancy to its sister lot.

Continue Reading “Grandfathering” By Issuance of Building Permits